[76 Ariz. 97] Wm. P. Mahoney, Jr., County Atty., and Charles L. Hardy, Deputy Co., Atty., Phoenix, for the State.
Paul H. Primock and Newman W. White, Phoenix, for defendant.
The trial court, under the provisions of section 44-2401, A.C.A.1939, has certified to us four questions of law arising in the above entitled criminal case with a request that we render an advisory opinion thereon. The precise questions are hereinafter set forth haec verba. In substance they all raise the question as to whether the results of a drunkometer test are admissible in evidence where the evidence discloses the specimen of breath was forcibly taken from the [76 Ariz. 98] defendant over his objection. It is asked if such acts violate the defendant's Federal and state constitutional rights.
Counsel have stipulated to the purported facts which are in substance that defendant was arrested in February 1953 by police officers while he was driving an automobile within the city of Phoenix and that a drunkometer test of a specimen of his breath made soon thereafter disclosed a blood alcohol concentration of .249% by weight. The facts as stipulated do not disclose upon what grounds the arrest was made but the only inference to be drawn therefrom is that the police officers making the arrest had reason to believe that defendant was then and there operating an automobile while under the influence of intoxicating liquor. In any event a direct information was promptly filed in the superior court of Maricopa County charging defendant in two counts with operating an automobile while under the influence of intoxicating liquor and with reckless driving alleging a former conviction in each count.
It is stipulated that the drunkometer test is the only evidence of intoxication. It is further stipulated that defendant refused to submit to a drunkometer test which we presume means to state that he refused to permit a specimen of his breath to be taken and was compelled to submit thereto by force. The stipulation contains the statement that certain police officers who, if called as witnesses, would testify that in order to procure the breath specimen of defendant it was necessary that he be forcibly placed in restraining straps and that his head be forcibly held during the taking of the breath specimen. No further details are included in the agreed stipulation of facts.
It will be seen from the above that the stipulated facts are most incomplete and unsatisfactory in that it cannot be determined therefrom if the breath was forced from the lungs by the officers in some brutal manner or if it was forced to be retained in the lungs and permitted to escape only through some device clamped over the mouth and
nostrils of the defendant or in some other unlawful or inhuman manner by the use of force.
We will dispose of the questions in the order of their presentation.
1. Is the result of a drunkometer test admissible in evidence where the testimony or evidence discloses that said specimen of breath of defendant analyzed in such test was forcibly taken from said defendant and over the objections of said defendant?
The answer is yes, if the force is used in capturing the exhaled breath after it passes the lips or nose of defendant.
This question involves a rule of evidence. We are committed to the following rule under our decision in the case of State v. Frye, 58 Ariz. 409, 120 P.2d 793, 797. The court said:
[76 Ariz. 99] 'No innocent party need fear the effect of the use of evidence against him illegally obtained, while the invasion of his right to be free from illegal trespass will be avenged by a judgment in damages, and, if the court having jurisdiction of officers committing the offense does its duty in cases where the violation was willful and intentional, by punishment for contempt. On the other hand, even the guilty criminal against whom the evidence is used has the same remedies for an illegal trespass, but should not be given, in addition immunity for some other breach of the law. The constitutional provision was not meant to assist a guilty criminal in escaping the penalty for his misdeeds, but to protect certain rights belonging to all men alike, and the remedies applied should recognize this principle. We hold, therefore, that in determining the admissibility of evidence the fact that it has been obtained as the result of a violation of the Fourth Amendment does not affect the issue.'
To the same effect is State v. Pelosi, 68 Ariz. 51, 199 P.2d 125. In People v. DeFore, 242 N.Y. 13, 150 N.E. 585, Judge Cardozo, author of the opinion stated that thirty-one of the states of the Union adhere to this rule. The reason assigned for the rule is that courts will not hear evidence on collateral issues in the trial of criminal cases. Further citations are unnecessary.
2. Does the forcible taking of a breath specimen from a defendant for the purpose of a drunkometer test, violate article 2, section 10 of the constitution of Arizona?
The answer is no.
Section 10, supra, provides that:
'No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense.'
The above provision of our constitution is in substance the same as one of the immunities guaranteed under the provisions of the Fifth Amendment to the Constitution of the United States. Every state in the Union has similar provisions with the exception of Iowa and New Jersey. Although slightly different in the language employed the courts uniformly hold that their meaning and purpose are the same. While there is a divergence of authority on the scope of evidence intended to be embraced in this constitutional immunity the better rule, we believe, is that it is limited primarily to testimonial compulsion, i. e., 'to extract from the person's own lips an admission of his guilt.'
8 Wigmore on Evidence, 3d ed., sections 2252, 2263, enunciate the history of the rule and the rule ...